SA team presents case on Gaza genocide
SA argued genocidal intent on the first day of its urgent case at the International Court of Justice (ICJ) against Israel for its conduct in Gaza.
SA says Israel has violated the Genocide Convention to which both countries are signatories. Israel has denied this.
According to SA’s department of international relations & co-operation, the ICJ at The Hague “is requested to declare on an urgent basis that Israel is in breach of its obligations in terms of the Genocide Convention”.
SA sent a team of prominent lawyers, aided by Irish and British counterparts, to the Netherlands to make the case to the ICJ bench of 15 judges.
“Genocides are never declared in advance,” said Adila Hassim, who presented an overview of SA’s case. She listed a series of acts that Pretoria says shows Israel’s genocidal intent, such as forcing millions of Gazans to live in dire conditions, bombing them and blocking medical and humanitarian aid.
“All of these acts individually and collectively form a calculated pattern of conduct by Israel indicating a genocidal intent,” Hassim said.
At this stage, SA’s case is essentially twofold: first, the big case is to have Israel’s conduct in Gaza declared as acts of genocide or genocidal intent in violation of the 1948 Genocide Convention. Second, and more urgently, to obtain “provisional measures”, where the court can essentially order Israel to stop its current military operations in Gaza, pending the court’s final determination on the first issue.
Whereas the court could grant the provisional measures within weeks, the larger case could take up to a year, according to various law experts.
The ICJ, also known as the
World Court, received SA’s urgent application following an attack by Hamas on positions in Israel bordering the Gaza Strip on October 7, in which a reported 1,200 Israelis were killed and 240 more were kidnapped.
Israel responded with an assault on Gaza, where Hamas members are located, killing more than 23,000 people, according to Palestinian health officials at the time. Israel maintains it is “making every effort to limit harm to the non-involved”.
International law expert Hennie Strydom said in December provisional measures “are intended to provide protection to civilians during the armed conflict”. Furthermore, getting the provisional measures requires a “lower threshold” of proof than is required to prove that Israel has “genocidal intent” in its military operations in Gaza.
Tembeka Ngcukaitobi, another SA lawyer, listed statements and conduct by Israeli officials, including Prime Minister Benjamin Netanyahu and parliamentary leaders, that SA alleges constitute genocidal intent. For example, the deputy speaker of Israel’s parliament called for the “erasure of Gaza Strip from the face of the earth”; and a senior army official, Ezra Yachin, encouraged Israeli soldiers to “erase them, their families, mothers and children” after the October attacks.
Ngcukaitobi noted that Israel’s failure to condemn those statements and acts was itself a violation of the convention.
“What state would admit to a genocidal intent?” he noted. Genocidal intent, he said, is not only “chilling but overwhelming and incontrovertible”.
Irish advocate Blinne Ní Ghrálaigh said nearly 2-million Palestinians have been forced to flee to “ever-shrinking slivers of land, where they continue to be bombed and killed”.
She labelled this “the first genocide in history where its victims are broadcasting their own destruction in real time”.
British barrister Vaughan Lowe concluded SA’s case by arguing SA cannot bring a case against Hamas because “Hamas is not a state” and cannot be brought before the ICJ.
Lowe noted that Israel ’ s current argument that it is acting out of self-defence had previously been dismissed by the ICJ in a 2004 case involving Palestine. The court said Israel occupies the Occupied Palestinian Territory and “the right of selfdefence … had no relevance”.
Recently the UN Security Council “affirmed that Gaza is occupied territory”, which meant Israel cannot use that previously dismissed argument.
In the end, Lowe said, “no matter how … appalling an attack … genocide is never a permissible response”.
The case concludes on Friday with Israel’s response.